Espey Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1940

26 N.L.R.B. 910 (N.L.R.B. 1940)

In the Matter Of ESPEY MANUFACTURING COMPANY, INC. and LOCAL
430 OF THE UNITED ELECTRICAL RADIO AND MACHINE WORKERS
lF AMERICA, C. I. O.
Case No. R-1984.-Decided August 21, 1940
Jurisdiction : radio manufacturing industry.
Investigation and Certification of Representatives : existence of question con-
flicting claims of rival representatives; contract renewed after institution of
proceedings, no bai to; election necessary
Unit Appropriate for Collective Bargaining : production employees excluding
watchmen, porters, foremen, timekeepers, supervisors, engineering, laboratory,
toolroom, time-study, maintenance, shipping room, receiving room, stockroom,
office, and clerical employees.
Mr. Shad Polier, for the Board.
Mr. Frank Schemer, of New York City, for the United.
Mr. William Karlin and Mr. Leo Greenfield, of New York City, for
the Brotherhood.
Mr. Nathan Pinsky, of New York City, for the Company.
Mr. Stanley D. Metzger, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 15, 1940, Local 430 of the United Electrical, Radio and
Machine Workers of America, affiliated with the Congress of Industrial
Organizations, herein called the United, filed with the Regional
• Director for the Second Region (New York City) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Espey Manufacturing Company, Inc., New
York City, herein called the Company, and requesting an investiga-
tion and certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On July 5, 1940, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
26 N. L. R. B., No. 95.
910
ESPEY MANUFACTURING COMPANY, INC. 911
On July 19, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the United,
and upon Radio Union Local B-1010 of the International Brotherhood
of Electrical Workers, affiliated with the American Federation of
Labor, herein called the Brotherhood, a labor organization claiming
to represent employees directly affected by the investigation. Pur-
suant to notice, a hearing was held on August 1, 1940, at New York
City, before Webster Powell, the Trail Examiner duly designated by
the Board. The Board, the United, and the Brotherhood were repre-
sented by counsel, and the Company by its representative. All
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner made a number of rulings on motions and on objections
to the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prej udical errors were committed.
The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Espey Manufacturing Company, Inc., is a New York corporation,
having its principal office and plant in New York City, where it is
engaged in the manufacture, sale, and distribution of radios. Approxi-
mately 90 per cent of its raw materials, consisting of speakers, resis-
tors, condensers, tubes, wire, and cabinets, are shipped to it from points
outside the State of New York. Approximately 25 per cent of its
finished products are shipped to points outside the State of New York.
The Company stipulates that it is engaged in interstate commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Local 430 of the United Electrical, Radio and Machine Workers of
America, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to its membership employees of the
Company.
Radio Union Local B-1010 of the International Brotherhood of
Electrical Workers, affiliated with the American Federation of Labor,
is a labor organization admitting to its membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 1, 1939, the Company and the Brotherhood entered into
a contract for a term expiring on March 1, 1940, which provided, inter
alia, that in hiring employees the Company would give preference to
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the Brotherhood , that newly hired employees would be
required to join the Brotherhood , and that at the expiration of the
contract term the Company could extend the contract for an additional
1 or 2 years . Nathan Pinsky , the Company 's secretary , testified that
on May 1, 1940, following a conference between Pinsky , Harold
Shovers, the Company's president and sole stockholder , William Beedie
international representative of the Brotherhood , and H . Barnett,
local representative of the Brotherhood , the Company and the
Brotherhood executed an extension of the contract which had expired
on March 1, 1940, for a term ending May 1, 1941.
On May 15, 1940 , the United filed its petition herein, and on May
16, 1940, a field examiner of the Board informed the Company by
letter of that fact. On May 20, 1940 , Shovers, the field examiner,
and Frank Scheirer, attorney for the United , conferred at the Regional
Office of the Board. Shovers informed them that the contract be-
tween the Company and the Brotherhood had expired on March 1,
1940 , and that no extension agreement had been executed. About
July 15, 1940 , Shovers informed representatives of the United that an
extension agreement had been executed but, in response to the
United's request, stated that he would maintain the "status quo"
until the United 's petition for an investigation and certification of
representatives was disposed of by the Board.
The Company's affairs are managed jointly by Shovers and Pinsky.
Pinsky testified that they both attend business daily, confer contin-
ually on all important questions , and make no important moves
without joint consultation . He testified further that he considered
a labor contract , involving the expenditure of thousands of dollar's
annually, and " important" matter. It would, therefore , be most
unusual for Shovers not to have been informed of the execution by
the Company of the purported extension agreement of May 1, 1940.
However, according to Pinsky , Shovers was present at the conference
at which the extension agreement was executed. Therefore , accord-
ing to Pinsky , Shovers must have known of its execution. As stated
above, however, Shovers , some 3 weeks after the purported execution
of the extension agreement , on May 20 stated that there was no
extension agreement . Beedie and Barnett, purportedly present at
the May 1, 1940, conference , were not called by the Brotherhood to
testify. In view of these circumstances , we find that no extension
agreement was entered into on May 1 , 1940, and that no such agree-
ment was executed until after May 20, 1940, at which time Shovers
stated that there was no agreement in effect. Since by that time the
Company had learned of the United 's claim to represent its employ-
ees, the validity of its agreement with the Brotherhood was depend-
ent on our determination of the conflicting claims of representation.
ESPEY MANUFACTURING COMPANY, INC. 913
We find that the extension agreement is uo bar to our determination
of a question concerning representation.
A report by the Regional Director with respect to the representa-
tion claims'of the United was introduced into evidence at the hearing.
The report, which was based on a check of membership application
cards submitted by the United and the Company's pay roll of June 11,
1940, reveals that the United represented 6 out of 15 employees in
the appropriate unit at that time. The record shows that the unit
has' increased in size since that date to approximately 22 employees,
but does not reveal the union affiliations of the additional 7 employees.
The Brotherhood submitted no evidence with respect to its member-
ship claims, we find, in view of the circumstances above recited,
that the United represents a substantial number of employees of the
Company.
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing the parties stipulated that all production employees
of the Company, excluding watchmen, porters, foremen, timekeepers,
supervisors, engineering, laboratory, toolroom, time-study, mainte-
nance, shipping room, receiving room, stockroom, office, and clerical
employees, constitute an appropriate bargaining unit.' We see no
reason to alter the unit agreed upon.
We find that all production employees of the Company, excluding
watchmen, porters, foremen, timekeepers, supervisors, engineering,
laboratory, toolroom, time-study, maintenance, shipping room, re-
ceiving room, stockroom, office, and clerical employees, constitute a
unit appropriate for purposes of collective bargaining and that such
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
I Such a unit was specified in the contract between the Company and the Brotherhood which expired on
March 1 , 1940 The Company does not employ persons in many of the excluded classifications , their specific
exclusion is consistent with the umfoim contracts in the industry.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
All parties desire an election to determine the question concern mg
representation . We find that the question which has arisen concern-
ing the representation of employees of the Company can best be
resolved by an election by secret ballot.
The United desires eligibility to vote in the election to be determined
as of the date of its petition herein, May 15, 1940. It claims that
employees hired subsequent to that date , in July, are not "permanent"
employees . The record shows, however , that the Company 's busi-
ness is seasonal , operating at maximum production from July through
January annually . We find that employees in the appropriate unit
hired for that period have a substantial interest in the choice of
representatives and shall be eligible to vote in the election. The
Brotherhood desires eligibility to vote to be determined as of the
Company's pay roll immediately preceding the date of this Direction
of Election . In accordance with our usual policy, we adopt this
eligibility date.
We shall direct that those eligible to vote shall be the employees in
the appropriate unit whose names appear upon the Company's pay
roll immediately preceding the date of this Direction of Election, in-
cluding any employees who did not work during said pay-roll period
because they were ill or on vacation , and employees who were then
or have since been temporarily laid off, but excluding those who have
since quit or been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Espey Manufacturing Company, Inc., New
York City , within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All production employees of the Company, excluding watchmen,
porters, foremen , timekeepers , supervisors , engineering , laboratory,
toolroom, time -study, maintenance , shipping room, receiving room,
stockroom , office, and clerical employees, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section
(b) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act , and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it
is hereby
ESPEY MANUFACTURING COMPANY, INC. 915
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Espey Manufacturing Company, Inc., New York City, an elec-
tion by secret ballot shall be conducted as early as possible but not
later than thirty (30) days from the date of this Direction of Election,
under the direction and supervision of the Regional Director for the
Second Region, acting in this matter as agent for the National Labor
Relations Board and subject to Article III, Section 9, of said Rules
and Regulations, among all production employees of Espey Manu-
facturing Company, Inc., New York City, whose names appear upon
the Company's pay roll immediately preceding the date of this Direc-
tion of Election, including any employees who did not work during said
pay-roll period because they were ill or on vacation, and employees who
were then or have since been temporarily laid off, but excluding
watchmen, porters, foremen, timekeepers, supervisors, engineering,
laboratory, toolroom, time-study, maintenance, shipping room, re-
ceiving room, stockroom, office, and clerical employees, and employees
who have since quit or been discharged for cause, to determine whether
they desire to be represented by Local 430 of the United Electrical,
Radio and Machine Workers of America, affiliated with the Congress of
Industrial Organizations, by Radio Union Local B-1010 of the Interna-
tional Brotherhood of Electrical Workers, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or by
neither.
MR. WILLIAM M. LEISERSON, dissenting:
I would dismiss the United's petition because it has not produced
sufficient evidence of its designation by the Company's employees as
a bargaining agent to raise a question concerning the representation
of those employees.